Agency appeals ruling that gave it authority to order halt to coal ash pollution

An excavator works beside a mound of ash at the pond at Santee Cooper's Jefferies power generating station just outside Moncks Corner, S.C., on Feb. 26, 2014. The recycled coal ash is trucked from the site and then used in the manufacture of concrete. Santee Cooper is South Carolina's state-owned electric and water utility. (AP Photo/Bruce Smith)

By McClatchy News Service

Published: Tuesday, April 8, 2014 at 11:58 AM.

RALEIGH — The state’s Environmental Management Commission on Monday appealed a judge’s ruling that gave it the authority to force Duke Energy to immediately stop pollution at its coal ash ponds.

It was an unexpected move by the state — and an unusual one — and put the commission on the same side of the ruling as Duke Energy, which last week also appealed the judge’s decision.

The March 6 ruling by Wake Superior Court Judge Paul Ridgeway reversed a state Environmental Management Commission decision that was reached in December.

The state EMC for several years has interpreted a groundwater pollution rule to mean that it didn’t have to require a polluter to immediately stop the source of pollution, which gave regulators more options to work toward a cleanup. Environmental groups sued to force the commission to return to the way it had imposed the rule before that, but the commission decided it had interpreted the rule correctly.

Environmentalists then sued to appeal the EMC ruling. Ridge agreed with them, and said the state had the authority to require an immediate halt to pollution. The EMC adopts and oversees rules for the state Department of Environment and Natural Resources, and is represented by the attorney general’s office.

D.J. Gerken, an attorney for the Southern Environmental Law Center, said Monday that the appeal runs counter to the state Department of Environment and Natural Resources’ decision last week to pull out of its proposed enforcement lawsuit settlement with Duke. The state agency had been criticized for a settlement that some environmental groups and the U.S. Environmental Protection Agency thought was too lenient.

“Just a week after the state publicly abandoned its sweetheart deal with Duke and promised to ‘enforce’ the law, it has appealed a judicial ruling that confirmed the state's legal authority to enforce a real solution for coal ash contamination,” Gerken said. “We’re disappointed that this administration remains so determined to delay through litigation rather than move forward to stop ongoing pollution of North Carolina's rivers, lakes and groundwater.”

RALEIGH — The state’s Environmental Management Commission on Monday appealed a judge’s ruling that gave it the authority to force Duke Energy to immediately stop pollution at its coal ash ponds.

It was an unexpected move by the state — and an unusual one — and put the commission on the same side of the ruling as Duke Energy, which last week also appealed the judge’s decision.

The March 6 ruling by Wake Superior Court Judge Paul Ridgeway reversed a state Environmental Management Commission decision that was reached in December.

The state EMC for several years has interpreted a groundwater pollution rule to mean that it didn’t have to require a polluter to immediately stop the source of pollution, which gave regulators more options to work toward a cleanup. Environmental groups sued to force the commission to return to the way it had imposed the rule before that, but the commission decided it had interpreted the rule correctly.

Environmentalists then sued to appeal the EMC ruling. Ridge agreed with them, and said the state had the authority to require an immediate halt to pollution. The EMC adopts and oversees rules for the state Department of Environment and Natural Resources, and is represented by the attorney general’s office.

D.J. Gerken, an attorney for the Southern Environmental Law Center, said Monday that the appeal runs counter to the state Department of Environment and Natural Resources’ decision last week to pull out of its proposed enforcement lawsuit settlement with Duke. The state agency had been criticized for a settlement that some environmental groups and the U.S. Environmental Protection Agency thought was too lenient.

“Just a week after the state publicly abandoned its sweetheart deal with Duke and promised to ‘enforce’ the law, it has appealed a judicial ruling that confirmed the state's legal authority to enforce a real solution for coal ash contamination,” Gerken said. “We’re disappointed that this administration remains so determined to delay through litigation rather than move forward to stop ongoing pollution of North Carolina's rivers, lakes and groundwater.”